Place v. Town of Sterling

• Decision Date: 11 March 1913
• Citation: 86 Conn. 606,86 A. 3
• Court: Connecticut Supreme Court
• Parties: PLACE v. TOWN OF STERLING.

86 A. 3

86 Conn. 606

PLACE

v. TOWN OF STERLING.

Supreme Court of Errors of Connecticut.

March 11, 1913.

Appeal from Superior Court, Windham County; William E. Bennett, Judge.

Action by Harley S. Place against the Town of Sterling. Judgment for defendant, and plaintiff appeals. Affirmed.

Charles E. Searls, of Putnam, and Harry E. Back, of Killingly, for appellant.

William A. King and George E. Hinman, both of Willimantic, for appellee.

RORABACK, J. The plaintiff alleges that on the evening of October 17, 1909, his horses were drowned in Oneco pond in the defendant town; that the highway near the place where his horses were drowned was defective and out of repair; that his injuries were caused by this defect; and also that the plaintiff's negligence did not contribute to his injuries. The defendant admitted that the plaintiff's horses were drowned and denied all the other allegations. Under the issues then presented the plaintiff assumed the burden of proof of establishing by a preponderance of the evidence each of the three lastmentioned propositions by substantial evidence upon which the jury might reasonably have reached a conclusion favorable to the plaintiff. If this were not done, the nonsuit was properly granted.

The plaintiff offered evidence of the following facts: In the summer and fall of 1909 the plaintiff owned and operated a steam sawmill at Oneco, in the defendant town. The plaintiff resided in the town of Killingly several miles away, and his son Walter Place was the plaintiff's foreman and in charge of the work and men in Oneco. One Joseph Ennis had been in the plaintiff's employ more or less for two or three years, and continuously during the summer and fall of 1909 as a teamster engaged in drawing logs to the plaintiff's sawmill. On the morning of October 17, 1909, which was Sunday, Walter Place ordered Ennis to take the plaintiff's horses and wagon and draw a load of slabs to Oneco. About 10 o'clock in the forenoon of the 17th, when Ennis went to the woods to load the slabs, he had a quart of liquor with him which he commenced drinking. He continued drinking this liquor, and after he had unloaded the slabs he was so intoxicated that he laid down in the bottom of the wagon and remembered nothing more until some time after dark, when he found himself in the water of Oneco pond with the horses and wagon; he then tried to get the horses out of the pond, but was unable to do so. The lines were then tied to the brake. Ennis felt cold and got out of the wagon, went into a woodshed near by, and laid down until morning. Oneco pond, where the accident occurred, is a millpond. The distance from the public highway to the edge of the pond at this point was about 125 feet. The highway was about 21 feet higher than the pond. From the highway to the pond there was a driveway which branched off from the public highway. This driveway extended through a bar way and descended down to the pond at a grade of about one foot to every five feet. There were no bars or railing to prevent a team from leaving the highway and going down this driveway into the pond. The water of the pond was shallow for a distance of 10 or 15 feet from its edge. Ennis was familiar with the highway, driveway, and the pond at this place. For about two months of the summer of 1909 he drove down this driveway with a pair of horses and a wagon and turned between the driveway and the water and backed into the pond for the purpose of getting water for the plaintiff's steam sawmill. The tracks of the horses and wagon the morning after the...